Intellectual Property Law Issues - Essay Example

? Intellectual Property Law Intellectual Property Law Part A Introduction Generally, intellectual property law is an area of law that has been designed to protect the rights of individuals or institutions who develop original works. It focuses on the creation of intellectual property trade secret laws, trademarks, copyrights, and patents, as well as the protection of rights relating to intellectual property and the legal pursuit of persons who infringe others’ intellectual property rights.1 This law covers things such as identification marks of companies, inventions, novels, and original plays among others. This law provides a framework for protection of legal rights of artists, traders, inventors, and writers among other people and institution that create original works. The main purpose of intellectual property law is to encourage inventions, artistic expressions, and new technologies, which are critical ingredients for economic growth. It is informed by the fact that when people know that their creative works will be protected and there is a great possibility of benefitting from their works, they are more likely to enhance their capacities to produce things that develop new technology, create beauty in the world, make processes more effective and efficient, and create jobs.2 This part of the paper will focus on intellectual property law; in particular, it will focus on a scenario that brings out the aspects of copyright which is covered under the intellectual property law. The paper will seek to advise James on various issues that relate to copyright law. James is faced with legal issues that need to be focused on and appropriate decisions made regarding the issues to ensure that he gets legal remedy and he is rewarded for his creative work. Similarly, the advice will help to make decisions that will ensure that James is not short-changed in any way by the parties involved. Discussion From the facts, it can be gathered that James, who is an employee of Farnon and Farnon, a large veterinary practice, is a charismatic figure and as a result has been chosen by a television producer to talk about animals’ problems in a weekly series “James on Pets”, which is a popular series. It can also be gathered that while still employed by Farnon and Farnon, James writes a book titled “The James Pet Book” which concerns basic pet care. Parts of this book are based on guidelines and instructions that had previously been produced and distributed to new veterinary staff at Farnon and Farnon. However, Siegfried, who is Farnon and Farnon’s senior partner, is claiming that the Animal Care Guidelines that belong to the veterinary practice. It is clear that this claim is founded on the fundamentals of intellectual property law that seek to protect the legal rights of an original author of a book and to ensure that the person who developed it has benefitted from it.3 On one hand, Siegfried wants Farnon and Farnon to benefit from the copyrights of the book as he believes that the Animal Care Guidelines contained in the book belongs to the veterinary practice. On the other hand, this seems like a protracted claim on the part of the firm to deprive James of his copyrights on the book, probably because he may not be conversant with the intellectual property law. Therefore, it is important to put this issue in the legal perspective in order to advise James accordingly to make sure that he is not short-changed. Firstly, it is important to understand what the intellectual property law says about copyright. The James’ situation falls under the copyright; a main area under the intellectual property rights. Copyright applies to works which are recorded in some manner: copyright exists in things or items such as dramatic, literary, musical, and artistic works, as well as typographical arrangements, films, and sound recordings. Copyright gives the author particular rights that relate to the work, and prohibit actions that are unauthorized. Besides, copyright allows the author to take legal action against instances of plagiarism or infringement by other persons.4 Under the UK laws, copyright is covered under The Copyright, Designs and Patent Act 1988. The law allows the creator to have the right to be identified as the author of the work and to object any kind of distortions of his or her works. Based on the description of copyright, it is evident that James is entitled to the copyright of the book he wrote- “The James Pet Book”. The facts indicate that James is the creator of the book and therefore should have control over the work, as well as profiting from the work. The Copyright, Designs and Patents Act 1988 provides circumstances under which the copyright may occur. The Act states that copyright provides automatic right to an individual and occurs when an individual creates a work. For a work to qualify as a copyright for an individual, it should be regarded as original, and some degree of judgement, skill, or labour on the part of the author should be exhibited.5 From the facts, it is evident that James exhibited some degree of labour, judgement, and skill to the creation of the book- “The James Pet Book”. As has been mentioned in the facts, James is a charismatic figure and as a result of his charisma he has been chosen by a television producer to discuss about animals’ problems. There is no evidence of skill, judgement, or labour on the part of the firm. Also, the book can be regarded as original because there is no mention of any similar work or work that has similar title that exists at the moment. The concern raised by Siegfried, the senior partner of Farnon and Farnon claiming that the Animal Care Guidelines contained in the book belongs to the veterinary practice, is not sufficient enough to deny James the rights over the book. In his claim, Siegfried is implying that the Farnon and Farnon have rights in the book and the DVD. The premise that he is putting this claim is inadequate to validate it. Whereas it is true that the Animal Care Guidelines contained in the book had been distributed to new veterinary staff at the firm and one may be tempted to think it belonged to the firm, the guidelines were not the creation of the firm. Instead, the guidelines were the creation of James and he deserves credit for it. Also, Siegfried claim does not say that the guidelines that were distributed to new veterinary staff bore the firms logo or was printed by the firm. Actually, it has been stated that it is James who produced and distributed the instructions and guidelines; the instructions and guidelines of which were parts of his book. As such, it is undisputable fact that Farnon and Farnon did not exhibit judgement, skill, or labour regarding the work in question. Additionally, the work cannot be regarded as original work of the firm as it is evident that it is James who produced it. Under law, the interpretation of where the copyright occurs is related to the independent creation of the work rather than the idea behind the creation of the work.6 Therefore, whereas the idea behind the creation of the work might be related to James’ duties as an employee of Farnon and Farnon, the work was his independent creation and therefore the firm cannot claim the rights over the work. The Copyright, Designs and Patent Act 1988 also provides the framework for the ownership of the piece of work. The Act provides that normally the collective or individual who authored the piece of work will exclusively own the work and is usually referred as the initial owner of copyright. The Act also provides that if work is produced as part of employment then the company which is the employer of the individual would normally be the first owner.7 Probably, Siegfried might use this provision to claim that James produced the work as an employee of Farnon and Farnon and therefore the firm should be the first owner of the copyright and not James. This is not the case though as this provision is clear that such can happen when the work is produced as part of employment. As it can be seen from the facts, James did not produce the book and DVD as part of employment but rather as a result of his freelance work. Conclusion The Copyright, Designs and Patents Act 1998 provides that a piece of work produced as a result of commissioned or freelance work will normally belong to the author of the work. However, it also provides that the work can be regarded as that of the employer if there is an agreement to the contrary; that is, if there is a contract of service between the employer and the employee. In addition, the Act stipulates that rights cannot be claimed for any part of a work which is a copy that has been taken from a previous work.8 Since the guidelines that that Siegfried is claiming to belong to the firm produced by James were based on the part of the book, the firm cannot claim rights on them. In the light of these issues and rules, I would advise James to take legal action against the firm to ensure that he retains the rights in the book and the DVD is he is the author of the work. Part B Introduction The importance of intellectual property law cannot be overemphasized. Intellectual property rights have been considered to be very critical in helping the world to meet its targets, especially those set out in the Millennium Development Goals. Millennium Development Goals have been designed to promote environmental sustainability, improvement of education and health, and reduction of hunger and poverty among other goals.9 In particular, Intellectual Property Rights have been considered as critical in stimulating economic growth which is essential in contributing to reduction of poverty. Intellectual Property rights stimulate new technologies and invention, increase industrial and agricultural production, facilitate transfer of technology, improve medicines availability to fight diseases, and promote foreign and domestic investment.10 However, there are those who argue that Intellectual property rights can and have done little in stimulating invention particularly in the developing countries due to lack of adequate technical and human capacity. Therefore, they have become ineffective in stimulating research that aim at achieving global goals, most of which are focussing on developing countries.11 Also, the critics of Intellectual Property rights further argue that even in developed countries the requirements for patentability have not been satisfactory, especially in the light of recent technological developments. In the face of recent decisions that were viewed controversial in some quotas regarding biotechnology, it became apparent that the opposition procedures and patent examination procedures do not seem to balance the patent system. In other words, it became apparent that the requirements for patentability do not provide adequate guidance for patent examiners to deal effectively with the technological advances, especially in life science. It is against the background of these arguments that it is critical to examine the extent that the requirements of patentability can be considered satisfactory, especially in the light of recent technological developments. Discussion It is agreeable that over the years, the patent system especially in Europe has been confined to a self-regulated community that has been built on the interaction between the applicants of patent, the courts, and the examiners of patent.12 The advent of new technologies, biotechnology’s commercial applications, and biopatents has led to introduction of many controversial and complex issues into the public sphere. Therefore, has been emerging desirability for greater participation and enhanced requirements for patentability in order to meet the emerging technologies requirements. Whereas technological advancements including biotechnology has led to increase in the number of patent applications, there has been increasing concerns by the scientific bodies, civil society, and a number of activist groups to challenge the commercialization and legitimacy of some of technological inventions especially the genetic inventions.13 The requirements for patentability still consider technological inventions as entirely passive activities that are developed by inventors and are used by consumers; this is a wrong consideration. Instead, they should consider technological inventions as inventions that comprise of complex networks and actors which involve families, institutions, research, and in some cases even patients.14 It is by considering these aspects that they will realize that the current requirements for patentability are not satisfactory because they do represent various and emerging actors and interests. In the United Kingdom just like other jurisdictions across the world, the requirements for patentability are designed in manner that ensures that before a patent is granted it has to satisfy certain conditions. The conditions that ought to be satisfied before a patent is granted are the following: the first one is that the invention has to be new, that is, it should not have been invented by someone else. A patent can only be granted if it is original and it has not been copied or imitated from the invention of others. The second requirement is that it should involve an inventive step; that is, it should have been developed from various inventive steps that are scientific, or which could be proven scientifically. In addition, before an invention is granted, it should be ascertained that it is capable of industrial application. If it is not capable of industrial application it therefore means that it may not be of significant importance to the society and ought not to be patented in the first place.15 As has been noted, patent aims at encouraging and protecting inventions that are essential in addressing some of the challenges that the world is facing. Therefore, an invention has to satisfy the requirement of being capable of industrial application for it to be granted patent. The last requirement for patentability is that for it to be granted it should not be excluded by subsections (2) and (3) of the Patents Act 1977 which stipulates that a patent should not be granted to invention whose commercial exploitation might be contrary to public morality or policy.16 The above requirements of patentability are relatively satisfactory as they capture the fundamentals of the aspects related to patent and invention in general. The conditions that ought to be satisfied as stipulated under the requirements of patentability are the fundamentals to inventions and their potential impacts on the society. They seek to ensure that the inventions are new and that they are not duplicated so that they can meet and overcome the existing and emerging challenges in the world. The requirements also seek to ensure that the step involved in developing an invention can be verified and traced so that necessary rectification or new developments on the invention can be incorporated where and when necessary. Most importantly, it seeks to ensure that patentable inventions are relevant to the particular situation in the society and can be applied on it. Equally important is the requirement that an invention should be consistent with the public morality or policy. There is no doubt that these requirements are very fundamental in the society and blend well with the objectives and designs of inventions.17 However, as was noted in the case of Lux Traffic Controls v Pike Signals, more is needed than excluded matter in order to facilitate patentability of an invention. Judge Aldous argued in this case that technical contribution is the extra thing required to enable an invention to be patented.18 In the light of recent technological developments, something extra is required as well. Apart from the excluded matter, the general requirements for patentability, and technical contribution; complex networks and actors which involve families, institutions, research, and in some cases even patients should be considered to ensure that the requirements for patentability become satisfactory in the modern age. The satisfactoriness of the requirements for patentability in the lights of technological advancements is informed by the fact that the patent system influences the individual inventors and inventions, as well as the cumulative effect on society and users across the entire society.19 Likewise, this necessity is informed by the realization that the general propensity of inventors especially in the technological fields to patent and the ability of other people to live with those patents depends mostly with the nature of requirements for patentability. However, as the patent system is at the moment, this aspect has not been factored in nor put in practice thereby disorienting the position of requirements for patentability in the light of technological advancements.20 Satisfactory requirements of patentability that has factored in technological advancements will be critical in setting new criteria upon which inventions, particularly technological inventions would be determined to ensure that they meet the patentability requirements. At the macro level, the effect of satisfactory requirements for patentability would ensure that a climate has been created within which technological innovators and inventors operate.21 Besides, such a climate will inevitably influence them in all stages of their invention work. In addition, since the current requirements for patent are not entirely satisfactory, competitiveness in the technological patents has not been desirably high. A patent system that incorporates all the aspects that make requirements for patentability to be satisfactory can be a strong economic force that influences invention and competition. Therefore, to achieve this, those who are responsible for patent policy should ensure that the patent system is operated and designed in ways that can deliver at the modern age of rapid of technological advancements.22 Conclusion It is evidently clear that intellectual property rights plays a very crucial role in helping the world attain its goals such as improvement of health and education, as well as reduction of poverty among other goals. It has been argued that intellectual property rights have to a greater extent achieved its objective of encouraging and protecting inventions that are vital in stimulating economic growth and development.23 However, there are those who argue that intellectual property rights have not done enough to meet its objectives across the world especially in the developing world. One of the main reason that has been cited for this situation is that the requirements for patentability has not been satisfactory enough especially in the light of recent technological developments. As it is now, requirements for patentability cannot be said to be entirely satisfactory especially in the wake of rapid technological advancements. That notwithstanding, it has been noted that these requirements have covered considerable grounds especially in respect to providing fundamentals of intellectual property rights, and patent to be specific. However, the requirements for patentability have not satisfactorily covered the technological advancements such as in the field of biotechnology. Therefore, in order for patent and intellectual property rights in particular to achieve its objectives, it is imperative that requirements for patentability should incorporate emerging aspects in technology. Lastly, it should consider technological inventions as inventions that comprise of complex networks and actors which involve families, institutions, research, and in some cases even patients. BIBLIOGRAPHY BOOKS Aplin, T. & Davis, J. Intellectual Property Law: Text, Cases, and Materials OUP 2009 Bainbridge, D. Intellectual Property, 7th Edition, Longman Pearson 2009 Bainbridge D, Cases & Materials on Intellectual Property Law, 5th Rev Edition Longman Pearson 2006 Bently, L. & Sherman, B. Intellectual Property Law, 3rd Edition, OUP 2008 Cornish, W and Llewelyn, D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 6th Rev Ed, Sweet & Maxwell 2007 Dowd, J. Copyright Litigation Handbook Thomson West 2006 MacQueen, H. Waelde, C. Laurie, G. Contemporary Intellectual Property: Law and Policy OUP 2007 Norman, Intellectual Property Law, Oxford University Press (2011) JOURNAL ARTICLES Hunt, RM 2004, 'Patentability, Industry Structure, and Innovation', Journal of Industrial Economics, 52, 3, pp. 401-425, Mentzer, S 2012, 'What You Need to Know Before You File a Copyright Infringement Lawsuit', Intellectual Property & Technology Law Journal, 24, 3, pp. 3-15 Kica, E, & Groenendijk, N 2011, 'The European patent system: dealing with emerging technologies', Innovation: The European Journal Of Social Sciences, 24, 1/2, pp. 85-105, Pila, J 2008, 'An Intentional View of the Copyright Work', Modern Law Review, 71, 4, pp. 535- 558 WEB PAGES The UK Copyright Service. Fact sheet P-01: UK Copyright Law. http://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law LEGISLATIONS AND CASE LAWS Lux Traffic Controls v Pike Signals The Copyright, Designs and Patents Act 1988 Patents Act 1977[1993] RPC 107 Read More